Wendy’s has sent the CSPI a scary legal threat letter over a photoshopped sample (click image for larger version) of a possible Wendy’s menu board included as an exhibit in the ongoing “Menugate” lawsuit.

Wendy’s claims in a letter send both to CSPI and to the United States District Court of New York, that CSPI is presenting the menu board as authentic when it was in fact “doctored” (Wendy’s words) and accuses CSPI and it’s of being “misleading” and of “improper use of Wendy’s trademark.”

As Constant Readers of the blog are already aware, there’s a legal battle going on over a new NYC regulation that requires large chain restaurants that already provide nutritional information to add calorie info to their menus.

We were initially skeptical of this regulation until Subway went ahead and complied with it. The resulting menus were exceptionally useful and uncluttered-looking, and we were convinced that the regulation has merit and would help consumers make better food choices.

Incidentally, we were also sort of shocked to learn, through model menus supplied by the CSPI, that some Starbucks venti fraps have more than 700 calories.

If we didn’t know that, does the average consumer? Probably not.

And now Wendy’s is sending scary legal letters over hypothetical menus.

We have to ask you just one thing: Why would the Center for Science in the Public Interest represent a menu board with calorie information on it as an authentic Wendy’s menu board in a lawsuit where Wendy’s is trying to keep calorie information off the menu board?

Here’s the paragraph in question, the “misleading” one, in which Dr. Margo Wootan of the CSPI supposedly misrepresents the photoshopped board:

22. See Appendix C for model Starbucks and Wendy’s menus. These model menus demonstrate that providing calories on the menu can be done without being confusing, difficult to read, or cluttering the menu.

According to the CSPI, Wendy’s is the chain at the forefront of weaseling out of the new regulation.
In an effort to slip through a loophole that lets restaurant chains who do not already provide nutritional information opt out of the requirement, Wendy’s added a disclaimer to their website claiming that their nutritional information doesn’t apply to NYC.

Are we meant to believe that just by adding a legal disclaimer a Double Stack won’t make you fat?

We regret that Wendy’s cannot provide product calorie information to residents or customers in New York City. The New York City Department of Health passed a regulation requiring restaurants that already provide calorie information to post product calories on their menu boards — using the same type size as the product listing.

We fully support the intent of this regulation; however, since most of our food is made-to-order, there isn’t enough room on our existing menu boards to comply with the regulation. We have for years provided complete nutritional information on posters inside the restaurant and on our website. To continue to provide caloric information to residents and customers of our New York City restaurants on our website and on our nutritional posters would subject us to this regulation. As a result, we will no longer provide caloric information to residents and customers of our New York City restaurants.

We regret this inconvenience. If you have questions about this regulation, please contact the New York City Department of Health and Mental Hygiene and refer to Health Code Section 81.50.

Made to order? What? Subway doesn’t seem to be having a problem, are their subs not “made to order?” In any case, being located in NYC didn’t stop the Consumerist from accessing nutritional information via Wendy’s site.

Anyway, thanks to Wendy’s misguided legal bullying, we’ve now read Dr. Wootan’s testimony and have learned some interesting facts about the need for better menu labeling. Think you know how many calories are in your food?

Did you know…

Two jelly-filled doughnuts at Dunkin’ Donuts have fewer calories than a sesame bagel with cream cheese?

A Frappuccino at Starbucks can have 200 more calories than the same size cappuccino?

A whole fried onion appetizer at a typical table service restaurant has 1,300 more calories than the fried mozzarella sticks?

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Boy, those restaurant companies REALLY hate this law. Blimpie completely removed nutrition info from their website because of it, and the proprietor of my local Blimpie (in Atlanta) said they were told to remove all nutrition info from the store.

How many calories in a #2 Krustyburger meal? Well, are you getting it with greasy fries or onion blobs? Duff or Diet Buzz? Medium, Large, or Gargantuan? With or without tomatoes, mayo, mustard, ketchup, mystery sauce? This is the combinatorial problem that the chains seemed to have, and NYC has done little to address it. Yes, their sample menus look good enough, but I read the law (IANAL) the same alarming way the chains do: “Component” estimated calories are not legit, if you can “have it your way” 98,304 ways, the law seems to say it must be listed so.

I was at Wendy’s last night, and after a weekend of drinking, I needed something greasy and unhealthy.

So I ordered the “Baconator”…which feels about as healthy when you eat it as it sounds. I’ve been working to adjust my diet, and the occasional “treat” like that would easily be detered by having the calories listed on the menu.

I wish it DID have that info, as I felt like crap after eatting that. I would have been better off in many ways if I ordered a salad (which I’m sure has more calories than I realize, too).

Here is an idea, modify the cash registers. As you place your order, and the cost tallies up, so does the calorie count. Adding extra cheese? You’ll see the number go up. Changing the side of fries for a side salad? Watch it go down.

@rbf2000: Misinformation, or complete lack of information, is vital to their sales. People are less likely to order a double burger, large fries and a large soda if they realize that that one meal gives them their total caloric intake for the day.

@rbf2000: Well, let’s see here. Bigger sandwich uses more meat/cheese/bacon/wahtever, and has more calories. The difference in cost between that sandwich and the normal version almost always corresponds perfectly with the cost of adding those ingreedients to the original sandwich it was based on.

We all know they’re charging signifigantly more for that extra product than it cost them, at least severalfold. So, yeah, higher calories sandwich equals higher gross profit and higher profit margin on that sale. As such, seeing the calorie counts would very likely dissuade a good number of customers from buying those higher-calorie, higher-cost, higher-profit sandwiches.

I can’t think of any good reason for Wendy’s NOT to comply with the regulation and the fact that they’re so adamantly against it leads me to believe they have something to hide. (Nor does it surprise me that a medium order of fries has more calories than a burger).

@rbf2000: I’m sure the profitablity of french fries and soda is stratospheric compared to other menu items.

@raybury: That still begs the question, how come Subway can do it and others can’t? They can have a disclaimer saying the caloric count is for the item listed and should be taken as a ballpark instead of as a complete guide. Companies seem to love to use those little disclaimers for other things so why not for this? Could it be that the real reason they’re so adamantly against this is because they really do not want their customers to know how extremely unhealthy some of their menu items are? You can go on and on about how people should know that fast food etc. is unhealthy, but many people do not really realize how unhealthy something really is. I consider myself an informed customer but I seriously had no clue that a frappaccino could have over 700 calories in it. I doubt the average customer would be any more informed.

@raybury: True, and that might be a reason why they’re resisting. If there are X combinations of a way a meal can be prepared and the law states that every single combination possible must be listed, than that would be impossible to comply with, and NYC would have to make certain provisions to allow the company to say “Calorie counts are approximate and may vary with actual ingredients used in preparation.”

I wonder if the law allows that? If it doesn’t, it should..that would at least allow consumers a place to start from, even if calorie counts had to be approximated.

I think AlteredBeast’s idea is one of the best I’ve read in a long while.

Notice that Subway at least makes a concerted effort to get some factual information to their customers. Even though there really are myriad ways you can have a subway sandwich, they are still providing estimates of the nutritional content based on the supplies they have available.

French fries have so many carbs in them that diabetics and others suffering from hypoglycemia will buy a bag to stave off the attack … the fries work better, since they convert to glucose slowly over the course of an hour.

Want a healthy meal at Wendys? Ditch the sugared soda and fries. Order a salad, an Orange Juice, and the Baconator … and ditch the bun.

@ptkdude: Honestly, if you’re eating at a place called Blimpies, I think nutrition is the least of your worries.
All kidding aside, companies should comply with this law, as it is useful information for their customers, and it helps people take personal responsibility in taking care of their health.

maybe fatasses should be held responsible for their laziness, if your concerned with eating too many calories then eat something else that isn’t fast food. When has fast food EVER been healthy, so why should we treat it like it should be.

If this really upsets you, don’t eat at Wendy’s. Boycotting is the simplest way of letting a company know that you’re not stupid, you can see through their legal wrangling and subterfuge, and that they’re doing it to trick the consumer.

Don’t be tricked. Instead of buying a Wendy’s value meal, spend the same amount of money at the grocery store and feed 3 times the people.

Now, I think it can be a bit ridiculous to have exact numbers on the menu but why not add the calories for the standard item, it’s better than nothing and everyone knows extra cheese == extra calories.

An in-store kiosk could be good, but presents a fairly substantial cost.

Overall, I think that if you are concerned about calories, etc. then you should be able to obtain it from the website. I suppose that discriminates against those with no Internet access, but then, wouldn’t paying for Internet access be a wiser financial decision than buying the Baconator?

Awww, but I wanted to see the calorie count in the Baconator…
I guess I’ll have to check their site…oh my…830 calories…that’s getting close to the insanity that is a full sized quiznos italian sub (but not quite).

@ptkdude: Of course they hate this. People have no idea that a single “Big Mac” has 5 days worth of the USDA daily recommended amount of fat. How many Big Macs do you think they’d sell if people saw that right next to the price? I’m betting it’d be a LOT less.

It’s one thing to have some vague knowledge somewhere in your brain that “this is bad for me”. It’s another to have to look at the number of calories right there when you’re placing your order and thing “HOLY SHIT! That value meal really IS a great deal – it’s 3 DAYS worth of calories, all in one meal!”

@B: I’ll have you know my standing order (I actually never have to order; I just walk in and they start making it) is a “6 inch” turkey sammich on rye bread, with yellow mustard, spinach and extra tomato. No cheese, no extra meat, no chips, no cookie, no soda. I have no idea what the nutritional content is because Blimpie refuses to tell me. I supposed I could actually make the damn sammich myself, but where’s the fun in that? lol

A few well-placed consumers during the lunch rush could take care of this quite easily.

Consumer: And how many calories does that sandwich have?Wendy’s cashier: 340Consumer: Oh. And how many calories do those fries have?Wendy’s cashier: 210. Consumer: Oh. And how manyâ€¦Angry person in line behind consumer: Lady, just order your lunch and get on with it!Consumer: Well, if they’d put this stuff on the menu I wouldn’t have to ask. And how many caloriesâ€¦

It’s a great idea, but in order to make sure people see it BEFORE they order (or in any meaningful way), you’d have to completely redesign the cash registers. Some already have nice displays (like newer drive thru’s), but most are old school dot matrix-y displays. For it to work, you’d have to display it on a screen, and that means major equipment expenses. I’m all for it, but I think the companies would have a legitimate complaint about unreasonable costs.

Perhaps they could mandate that all new chains had to adhere, but then you’d start seeing places resist upgrading their registers…

What would be really cool is if you had a kiosk where you did your order, so you could noodle around a bit, seeing what changes do what (w/ mayo, without, etc).

If you went to McDonald’s and had one hamburger, a small order of fries, and a 12 oz. coke, that’s only 610 calories. That’s a reasonable dinner for an average person. Why don’t people eat that? Because they sell it as a kid’s meal, and there’s no counter balance calories to compare.

Do you know the difference between getting a sandwich with cheese and without? How about how many more calories a plain Quarter Pounder is than a Cheeseburger? Or a Cheesburger with fries vs. a Quarter Pounder without fries? Should people at a restaurant of ANY kind have to do more research than they put in in buying a car?

Places like McDonald’s are all but coming out and saying they’re making food for impoverished minorities (Twista, anyone?). When they do that, I think it’s not out of the question to ask for them to make the math a bit easier.

It may not seem like much, but even cutting 100 calories a day can be the difference between gaining a pound a month and not. And since these companies make the food, is it too much to ask for them not to hide their nutritional info?

What always cheeses me off about the “take responsibility”argument is that there’s always one group taking advantage of another group’s weakness, then saying that same group should suck it up and work harder. That’s like an adult baiting a kid into an argument and then saying the kid should know better. Where’s the responsibility of these companies not to make business models based upon other people’s ignorance?

I have run into the issue of restaurants not providing info because “all food is cooked to order.” Bertuccis (italian/pizza) is another. I have written to many of the restaurants for nutritional info- and those that provide it get my business. Those that don’t get a polite letter back stating that I’ll be happy to dine in their establishment when they provide me with the information I need to make intelligent foods choices. They also get a sample list of their direct competitors who WILL get my business because they provide me with the info.

Of course the reason is that they fear that wide dissemination of the information will hurt their sales. That said, anyone who cares at all knows that if you eat at any of these places with any degree of regularity, you are slowly killing yourself. If you don’t get that basic fact then you are unlikely to be able to put the actual information into context anyway. Whether it’s 800 or 1100 calories per meal, 2x or 4x the recommended daily amount of fat, isn’t going to make a bit of difference in that person’s decision making. Just another law designed by people who believe that the government’s job is to protect people from themselves and that will end up doing nothing but providing more money to blood-sucking lawyers.

Subway is making a very smart decision being open about their caloric content while the other restaurants fight it to the death. This increases their public image in a HUGE way and makes companies like Wendy’s look 100 times worse in the public eye. Isn’t there someone in charge of brand management and PR at Wendy’s that sees this?? Subway could create an entire ad campaign in NYC based on the fact that they are cooperating with the regulations and no one else is. If you’re reading, Subway, yes, I would be happy to be in charge of this and cash or check is fine…

I really like those menus. I’m not a health nut, but when I’m looking at 2 different items and I see one has 100 less calories, I would be inclined to buy that first. Plus, I’m getting older and should cut calories here or there and this is the easiest way.

Sure I can go to the website and see how much everything has, but when I’m running into Wendy’s after a long day of working, how do you expect me to figure out what I want then find a computer online and compare it to everything else on the menu, it just isn’t feasible. If they have it right on the menu, I can compare everything right there as I’m choosing my order.

I don’t eat fast food except for Subway. I have 2 options when I go to Subway – tuna sub or veggie sub with cheese. I know the veggie sub has fewer calories than the tuna, I know adding cheese adds calories, I know adding mayo also adds calories. Now that Subway has the calories posted I’ve made more informed choices – I’ll get the veggie sub with cheese, no mayo and get chips (yum) or I’ll get the tuna sub no cheese and no chips.

Is there something bizarre and paradoxical about people saying “Yeah, you lazy fat people should know better than to eat fast food, and by the way, we’re opposed to it being easy for you to learn just how unhealthy that food is!” I would think that providing the public with more knowledge would INCREASE the amount of personal responsibility we hold people to, not decrease it.

Even when you read the current nutritional information for the fast food restaurants you don’t really understand the full content of what it contains. Can most Americans, in their minds convert say what a gram is and how much that is in comparison to tsps or tbsps? Just out of curiousity I got on McDonald’s nutrition information page. And for an entire meal consisting of a Big Mac, Med Fries and a Medium Coke this is what you are getting:

A Big Mac: 540 calories. 45 grams of fat which equals to a yummy 9.484 TEASPOONS of fat! That along with 1040 mg or salt. Maybe the salt is meant to soak up all that fat. Imagine just going into your kitchen, getting down the bottle of coooking oil and try choking down almost 9 1/2 teaspoons of the oil right out of the bottle! That is what we are getting with a Big Mac!

Medium Fries: 380 calories. 20 grams of fat which comes out to 4.215 teaspoons of fat. Don’t forget to add the 220 mg. of salt they contain on top of the salt you will surely add to the fries.

And to wash it all down a Medium Coke. Forgot to check the calories but it comes in with a whopping 58 grams of sugar which equals 12.223 teaspoons of sugar! So while you are putting away that bottle of cooking oil just grab the bag of sugar and try eating a bit over 12 teaspoons of sugar. By the way it has 15 mg of salt in it also!

With just the fat alone that comes to 13.699 TEASPOONS of fat and 1275 mg of sodium in one meal! I didn’t even bother adding the sugar that is included in the fries and Big Mac but with just the Coke alone it was 12.223 teaspoons!

I still fail to understand why a law targets restaurants that already provide this information, while not doing anything about restaurants that don’t bother to provide information at all. Who’s really the bad guy here? Wendy’s, who until recently published all of their nutritional content, or (say) Seth’s Coney Island International who never bothered to make an effort and isn’t penalized by the law.

I’ve got to side with Wendy’s and the other protesters. It has nothing to do with consumers and everything to do with free speech and the ability to conduct business. Equal protection ought to apply to artificial persons as well as natural persons.

Oops, submitted to soon. I for one am all for this. I very rarely eat fast food and am closer to being a health nut, but if on a road trip or at the airport, for example, and stuck without other options, I would like to see the calories on the board in one place before I order.

As others have noted, it lets you easily make trade-offs and if you’re already vacillating between two items, it’s easier to choose the lower calorie one.

I have worked at both Starbucks and Gloria Jeans (mall-based coffee chain) and after I looked at the nutritional information I stopped drinking their frozen drinks alltogether. The venti Starbucks Frapps with toppings could easily top 1000 calories in a 24oz. cup (specially any of the creme based ones (strawberries and cream, etc.)) Gloria Jean’s chillers often were even worse than that, first off 16oz is the small there and the large is a whopping 34oz. and the chiller mix is made with a milk as a base.

Despite those drinks having huge amounts of calories, most people also don’t realize the calorie count (among other things) in their morning lattes.

Most items are made to order?
The half-wits who work there can’t even get the regular menu orders correct. Do you think they could actually customize it properly?
So if someone says hold the pickles, that is made to order?

“Wendy’s claims in a letter send both to CSPI and to the United States District Court New York…”

Huh? Letters to the court? What kind of jackassery is this?

Anyway, watch the law of unintended consequences rear it’s ugly head: due to NYC’s nanny-state regulation, the rest of us our losing our opportunity to really find out what’s in that food as restaurants strip nutritional information off their WEBSITES.

Sure, the market (and hopefully, the ballot box) will eventually sort this out – if consumers want the information badly enough, they’ll demand it – but in the meantime, NYC’s paternalistic attitude is having repercussions on the rest of us.

Looking at Wendy’s nutrition guide (PDF, but really, take a look; possibly not available if you live in New York), you’ll find that it’s one of the most complete nutritional guides that I’ve seen available. If you skip to page 5, you’ll see that they actually break down each of their ingredients. They also do nice little extra like allergens, sodium levels, and so on.

I’ve been trying to find the exact wording of 81.50 Health Code Regulation, but haven’t been able to. Anyone can help me out with that? I ask because Wendy’s states, “[H]owever, since most of our food is made-to-order, there isn’t enough room on our existing menu boards to comply with the regulation.”

If you look at the PDF, you’ll understand their concern if the regulation says (and as I said, I don’t know) they have to list every derivation of their menu. They do make their food fresh. There’s no binning like at McDonald’s or Burger King. You order a double cheeseburger, and they make it when you order it. They have their “standard toppings” but it’s not like McDonald’s where your “special order” or “grill order” screws up the whole clockwork. They make their sandwiches to order.

As I said in my previous post, then, why does everyone hate Wendy’s when they’ve been providing the information for years and years, while there’s no requirement that the Russian Tea Room provide the caloric content (or suffering content) of their foi gras?

Why use my comment? Well, you just might be interested in the full story. Yes, I work for Wendy’s.Wendy’s already provides calories for all its products on a nutrition poster in every US resaurant. You’ll also find the listed numbers for fats (incl trans fats), sodium, cholesterol, carbos and proteins. We also list potential allergins for every product.We’re against posting the calories on the menuboard because we ALREADY offer far more than the regulation requires. Why do we need to post in two places?For nearly 30 years, we’ve provided nutrition info to our customers. You can use a nutrition calculator on http://www.wendys.com to learn the total nutrition components for any meal combination you desire.

King County, Washington (where Seattle is) recently enacted a law like NYC’s. The big differences are that 1) it only requires items that have been on the menu for 60 days or more to be labeled, so there’s no requirement to provide information for customized items, and 2) it applies to all restaurants with 10 or more locations, regardless of whether they give out nutritional information already or not.

@Black Bellamy: Expensive how? Just how much would it cost to have ballpark caloric information on the menus? If it isn’t going to stop anyone from eating their (I suppose only “fat fucks” eat at Wendys) then why are they fighting it so hard?

@Beerad: No, it’s not just you. I think the assumption is everyone should already know what is and isn’t bad for you and if it’s bad you should never eat it. You aren’t supposed to consider whether cake A has less fat or calories than cake B because CAKE IS BAD, DON’T EAT IT STUPID FAT PERSON!!1!ONE

I can only assume these people subsist on a diet of just vegetables and water.

If you’re eating fast food, you should not be concerned about caloric intake. It would be really nice if everyone could see their caloric intake, but if you’re eating fast food then you need to re-evaluate your health goals.

@hustler: It’s not an all-or-nothing thing. I may eat fast food only once a week, and otherwise keep a close watch on my intake (or, rather, allow my wife to do so). If the menu has calorie count on it, that means I can make better decisions that one time a week when I am trying to get a grab-and-go breakfast in a hurry. To be sure, all fast food is bad — but some is worse than others, and claiming that the world should be segmented into those who care and those who don’t give a shit (rather than allowing for gray areas or middle ground) is simply shortsighted.

Obviously this is a great law, very necessary. People ought to be able to make informed decisions about what to buy, especially when it comes to food. It’s telling that restaurants are so desperate to keep this information hidden: they know that the food they are selling is unhealthy, and they know sales will go down if consumers realize that. Here’s hoping this requirement becomes nation-wide.

I think it should be required to disclose all nutritional information to customers in places where you essentially have no choice of what to eat, such as in travel rest stops and airports. Since you are being forced to eat at these places, disclosing nutritional information is very important so you can compare choices of what you have available to you. It should be required in all fast food chains and all restaurants but I don’t think that will ever happen because the companies know they are selling unhealthy food to you and that if they disclosed all the information on a menu that you would either buy less of it or not buy it at all and they would lose sales.

Look, the basic issue here is health related. I want to know (within reasonable limits) what I’m eating and I want my children to know as well. I’m going to suggest to my local lawmakers both at a city and a state level that this NYC law is worthy of adoption.

With the health issues we have in America combined with a Health Care system that’s poor at best we each need to start accepting some of the responsibility involved in our own health. To me that means making educated choices about diet, exercise, alcohol and tobacco to name a few.

I’ve quit smoking and joined a gym. I eat at home more so that I can have better control over what goes into my body. When I do eat out I want to make informed decisions. If Wendy’s (or McDonald’s or any other QSR) doesn’t help me do that then I’ll pick places that do.

@DennyL.
Yes. You are afraid to display the same information on your menu. It’s that simple. The vast majority of people will never look up the information for themselves. You know this. You are trying to weasel out of a law designed to help consumers make better choices when ordering. Even worse, you are now removing previously available information from the city trying to enforce this.
Your statement that you “cannot” provide calorie information is a lie. Of course you can.
IT’S RIGHT THERE ON YOUR WEBSITE.
At the end of the second paragraph, you contradict yourself and correctly state “we *will* no longer provide caloric information to residents and customers of our New York City restaurants.”
Hmm, time to re-join CSPI and support the efforts to fend off corporate bullies.

I am APPALLED that the response to a law requiring nutritional information on the menu results in companies removing that information altogether. It seems pretty obvious that a secondary law of requiring nutritional information for chains of a certain size is required as well. Isn’t that in effect already in some states?

Also, for those that say that if you don’t like it, don’t eat there–for me, this is more about a public health and education issue. People who care about this sort of thing already aren’t the ones we need to worry about.

And I didn’t know a small fries was as many calories as a burger. I’m pretty nutrition-conscious, but I don’t have this stuff memorized.

I’m not opposed to the law, I just think it should be applied to all restaurants, regardless of size or convenience. People are quick (and correct) to demonize fast food as unhealthy, but I think the average diner’s hair would stand on end if they knew just how much fat was pumped into their expensive dinner at the Pompous Room.

I’ve known about the calorie content of Starbucks stuff even though I don’t drink coffee. Although I supposed I don’t really have to drink coffee to go to Starbucks considering they’re essentially selling milkshakes packed with a zillion calories.

I agree that the laws should apply to all restaurants, regardless of size, as well as adding nutritional information to alcoholic drinks too… Large corporation will always attempt to get around a law they ‘feel’ they can’t comply with… Anybody with photoshop skills can show how a company IS capable of complying with the law, yet companies make the lamest excuses as to why they can’t comply.